The Mikado's Empire/Catatan dan Apendiks/Warisan Iyeyasu

THE LEGACY OF

"TnE Legacy of ly^yasQ" is a document whose authenticity is yet to be proved. It purports to be the testament of the founder of the last shdgunate; but a thoroughly critical examination of its claims has not, I believe, been made. It is certain that it was not popularly or generally known in Japan, nor ever reckoned as within the body of standard legal literature. It was translated into English (thirty -seven pages print) by Mr. J. F. Lowder, some years before its publication by him in Yokohama, in 1874. The title of the pamphlet read thus: "The Legacy of Iye"yas (deified as Gongen-sama) : a Posthumous Manuscript, in One Hundred Chapters, translated from three collated Copies of the Original," printed at The Japan Herald office.

Dr. Walter Dixon, also, in his work on Japan, gives (chapter vii.) another ver- sion, with notes and comments. W. E. Grigsby, Professor of Law in the Impe- rial College in Tokio, in a paper read before the Asiatic Society of Japan, has given a scholarly analysis of the document, showing especially its similarity to most ancient law codes, such as those of Solon and Lycurgus, the Twelve Tables, the Mosaic, and the early Teutonic codes. He terms it " the most original mon- ument which Japan has produced in the way of legislation," with which compare Dixon, pp. 269, 270. Whether authentic or not, it embodies the policy of lye"- yasu, is a mirror of feudalism, and is of great historic value.

The work consists of one hundred sections, in no logical sequence, and difficult to determine in the original. Of these, sixteen consist of moral maxims and re- flections, which are quotations, or intended to be such, from Confucius and Men- cius ; fifty-five are connected with politics and administrations ; twenty-two re- fer to legal matters ; and in seven Iye"yasu relates episodes in his own personal history. No sharp distinction is made in it between law and morality, between the duties of the citizen and the virtue of the man. The man who obeys the law is virtuous ; he who disobeys it is vicious and low. It is the province of the leg- islator to inculcate virtue. All that we understand by law — all that embraces the main bulk of modern law, the law of contracts, of personal property, of will, com- mercial and maritime law — finds no place in this code. This arose from the fact that human life within the daimioate was regulated by custom, not by agreement ; and there was hardly any intercourse between the various daimioates, because the only property of any importance was land, and no will was allowed. On the oth- er hand, great stress was laid on criminal law, the law relating to landed proper- ty, the law relating to the status of persons and classes, to etiquette and ceremo- nial, to tables of rank and precedence, and to political administration and gov- ernment On these points, especially the latter, minute details are entered into with a peculiarity which is striking, when compared with the poverty of the code in respect to those matters which seem to us most important in a system of law. Another of the many points of similarity to ancient codes of law, notably the Mo- saic, is the elaborate provisions with respect to the avenging of blood and person- al satisfaction for injuries done. The individual does not, as in more advanced societies, give up his right of private vengeance. Great stress is laid on caste dis-

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tinctions, which are made more sharp and distinct by reducing them to writing, and thus perpetuating the unequal stages into which early society is divided.

Professor Grigsby further remarks that there is one great difference between this and all other early codes, viz., its secrecy. It was in express terms forbidden to be promulgated. The perusal of it was only allowed to the chief councilors of state (rojiu). How can people obey laws if they do not know their nature  ? A parallel is found in the history of the Aryan race. In Greece and Rome, at the beginning of their history, the knowledge of the laws and their administration was confined to the aristocratic class, and the first struggle of the commons was to force this knowledge from them — a struggle which ended in these codes being reduced to writing and promulgated. The parallel is not complete in respect to writing. In the case of Greece and Rome, the laws were unknown because not written : in Japan, though written, they were yet to be unknown. In early com- munities, custom has absolute sway. The magistrates, as lyeyasu says, are the reflectors of the mode of government ; they interpret, not make, the law. Any additions to the old customs were to reach the multitudes by filtering down through the magistrates, who alone would be conscious that they were new. To the multitude they would only be slight modifications of the customs they had always observed. As a code of laws, this was the character of the testameut of Iye"yasu, who claims merely to be a transmitter, not a framer, of the law. His work is a compilation, not a creation ; a selection from old, not a series of new, laws.

The "Legacy" is invaluable in representing to us the condition of society in feudal Japan. The basis of Japanese life, the unit of civilization, is the family, which is a corporation, the most characteristic mark of which was its perpetuity. The head of the family held a power similar, in nearly all respects, to that of the paterfamilias at Rome, having complete power over the persons and property of his children, and doing as he pleased with both, fettered only by that custom which is the great hinderance to despotism in all early communities. But his liabilities were equally great with his rights. He was responsible for all the ill- doings of any of his family. A Japanese family was not, however, what we un- derstand by the word. It was often not natural, but artificial. Persons whom we should exclude from the family were admitted into it, and those who with us are constant members were sometimes excluded from it. Adoption (yoshi ni naru) on the one hand, and emancipation, or the sending-away (kando suru) of a son from the family, on the other, were in constant practice. In Rome, adoption was employed merely to enlarge the family ; in Japan, solely to perpetuate it. The son adopted by a man having no male heir filled exactly the place of a natu- ral child  ; and, in early times at least, he must take the name of the adopting par- ent. If the adopting parent had a daughter, the adopted son married her, becom- ing heir himself, in which respect the Japanese custom differed from the Roman, which held that the natural tie of brother and sister was formed by adoption, and hence their marriage was illegal. Only an adult could adopt; but if the head of the family were an infant, he could adopt. This practice was often resorted to in Japan for two reasons — the religious and the feudal; to prevent the extinguish- ment of the ancestral sacrifices, with the consequent disgrace to the family; and because the land, being held only on condition of military service, if a vassal died leaving no male children, the lands escheated to the lord. The second method which rendered the family artificial were the expulsion and disinheritance of a son from the family, which, however, were only effected when he was of an irre- deemably bad character.

Marriage in Japan, which was allowed— rather, enjoined— in the case of a man

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at sixteen, of a woman at thirteen, was not a contract between the parties or a re- ligious institution, but a handing-over of the bride to the family of her husband by her own family, she passing completely under the control of her husband, both us to person and property, subject to reference to a council of family rela- tions.

So far the internal aspect of the family. Each family, however, was connected with other families, as in early Greece and Rome; and thus about flfly great clans were formed, of which the four principal were the Minamoto, Fujiwuru, Taira, and Sugawara, all the families of which were, or claimed to be, descended from a common ancestor. Certain sacrifices were peculiar to each, and certain dignities confined to certain families. Thus the office of kuambaku was monopo- lized by the Fujiwara, and the shogunate by the Minamoto clans (the families in succession being, the line of Yoritomo, the Ashikaga, and the Tokugawa). This condition of society was analogous to that in Italy and Greece from 1000 B.C. to 500 A.D. But what is peculiar to Japan is that, with this primitive form of so- ciety remaining unchanged, we find a system that did not arise in Europe till about the eleventh century A.D. Thus the superstructure of feudalism was rear- ed on the basis of the family — an incongruous social edifice, as it seems to our minds.

In Japan, then, at the time of the formation of the code, the mikado and the imperial court were above, and not included in, the theory of feudalism, at the head of which was the shogun, and beneath him the daimios, each with a terri- tory of greater or lesser extent, which he farmed out to the samurai, or vassals, in return for military service. In the greater daimioates these vassals underlet their lands on the same conditions ; in other words, subfeudation was common. A vassal not able, by reason of age or sickness, to perform this service abdicated in favor of his son. If a man died without leaving any children, natural or adopted, his property was retained for him by a legal fiction, for his death was concealed till permission was given by his lord for him to adopt a son, and only after such permission was given was his death announced. The necessity of having an heir, that the vassal's land might not escheat to the lord, but be kept in the vassal's family, greatly extended the practice of adoption. If the vassal proved faithless to his lord, both escheat and forfeiture were incurred.

The leading principles of lyeyasu's policy are thus summarized : The position of the shogun to the mikado was to be one of reverential homage. The shoguns were in no way to interfere with the mikado's theoretical supremacy, but to strengthen it in every way, and show all respect to the emperor's relatives, and the old court aristocracy. Secondly, toward their inferiors the shoguns were to behave with courtesy and consideration. All insult and tyranny were to be avoided, and the weight of power was not to press too harshly. The neglect of this principle, as shown in insolence to inferiors, was the rock on which the gov- ernments in nearly all ancient communities struck. This caution proves the con- summate knowledge of human nature and the profound mastery of state-craft possessed by Iye"yasu. Another recommendation of Iye"yasu was, that the govern- ment of the lesser daimios should be frequently changed. The motive alleged for this was the prevention of misgovernment ; but the real reason was, that they might not acquire local influence, and so endanger the power of the shoguns. This was similar in its purpose to the policy adopted by William the Conqueror, in portioning out the territories of his barons among several counties. In En- gland the plan was completely successful ; in Japan it failed, as we have seen, because the shoguns never dared to enforce the measure in the case of the greater daimios, who were the only ones to be dreaded. The best feature of the policy

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of the shogunate was to be the endeavor to maintain peace in the empire as far as possible, or, in the words of Iye"yasu, " to assist the people to give peace to the empire."